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11-2947-cv (L)

Hines v. City of Albany

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. 

CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS 

PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE 

PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A 

SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST 

CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH 

THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER 

MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the 

Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 

29th day of March, two thousand thirteen.

Present:

PETER W. HALL, 

DEBRA ANN LIVINGSTON,

CHRISTOPHER F. DRONEY,

Circuit Judges.

____________________________________________________

Constance Hines, Marshay Hines, 

Plaintiffs – Appellees,

v. No. 11-2947-cv (L);

 12-1126 (con)

Albany Police Department, John Monte, Albany Police Officer, Alfred Martin, Albany Police 

Officer, Brian Plante, Albany Police Officer, Robert Mulligan, Albany Police Officer, Robert 

Shunck, Albany Police Officer, Steven Krokoff, Albany Assistant Chief of Police, Jeffrey Hyde, 

Tim Haggerty, Albany Police Officer,

Defendants, 

City of Albany, James W. Tuffey, Albany Chief of Police, Brian Quinn, Albany Police Officer, 

Jeff Roberts, Michael Haggerty, Albany Police Officer,

Defendants – Appellants. 

____________________________________________________
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FOR APPELLANTS: John W. Liguori, Rehfuss, Liguori & Associates, P.C., 

Latham, New York.

FOR APPELLEES: Thomas Marcelle, Slingerlands, New York, Philip G. Steck 

and Kimberly G. Finnigan, Cooper Erving & Savage LLP, 

Albany, New York. 

____________________________________________________

Appeal from a judgment of the United States District Court for the Northern District of 

New York (McCurn, J.). 

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND 

DECREED that the judgment of the district court is AFFIRMED. 

Defendants City of Albany, Albany Chief of Police James W. Tuffey, and Albany Police 

Officers Brian Quinn, Jeff Roberts, and Michael Haggerty (collectively “Defendants”) appeal 

from a judgment of the district court entered on cross-motions for summary judgment granting in 

part and denying in part each motion but effectively concluding that, on the claim that 

Defendants had unlawfully seized and retained Constance Hines’ vehicle, summary judgment in 

favor of Plaintiffs Constance Hines and Marshay Hines (collectively “Plaintiffs”) was warranted. 

On appeal, Defendants contend that summary judgment in Plaintiffs’ favor was not warranted on 

this claim that Defendants unlawfully seized and retained the vehicle and that Defendants were 

otherwise entitled to qualified immunity. Defendants also contend that the City of Albany is not 

liable under Monell v. Department of Social Services of City of New York, 436 U.S. 658 (1978). 

We assume the parties’ familiarity with the underlying facts, the procedural history of the case, 

and the issues on appeal, and we discuss these only as necessary to explain our decision to affirm 

judgment in Plaintiffs’ favor. 

In the Krimstock line of cases that this Circuit decided in 2002, 2004, and 2006, we 

clearly established the procedural safeguards that are constitutionally required when the 
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government seizes a personal vehicle. See Krimstock v. Kelly, 464 F.3d 246 (2d Cir. 2006) 

(“Krimstock III”); Jones v. Kelly, 378 F.3d 198 (2d Cir. 2004) (“Krimstock II”); Krimstock v. 

Kelly, 306 F.3d 40 (2d Cir. 2002) (“Krimtock I”). By the time that Defendants seized and 

impounded Constance Hines’ vehicle in 2006, we had already outlined the procedure required 

when vehicles are seized for forfeiture purposes. In part because of the government’s direct 

pecuniary interest in seizing vehicles for forfeiture, we insisted that the probable cause 

determination by the officer effecting the warrantless seizure must be supplemented by 

additional process: “the Due Process Clause requires that claimants be given an early opportunity 

to test the probable validity of further deprivation, including probable cause for the initial 

seizure, and to ask whether other measures, short of continued impoundment, would satisfy the 

legitimate interests of the [government] in protecting vehicles from sale or destruction pendent 

lite.” Krimstock I, 306 F.3d at 68.

Although Defendants acknowledge that they did not afford Constance Hines such 

process, they resist the application of the rule of Krimstock I. Defendants insist that the vehicle 

was not seized for forfeiture purposes; but rather it was seized as evidence for use in the criminal 

prosecution of Prince Hines. We did not elaborate on the procedures required for vehicles seized 

as evidence until Krimstock III, after Constance Hines’ vehicle was seized (though well before 

Defendants released the car back into her custody). But there is nothing in the record to suggest 

that the vehicle was or contained evidence – that is, material that would “aid in a particular 

apprehension or conviction.” Warden v. Hayden, 387 U.S. 294, 307 (1967). Defendants have 

offered no theory under which the car itself could aid in the prosecution of Prince Hines, and we 

can think of none. Even if Defendants had probable cause to believe that the vehicle contained 

narcotics at the time of the seizure – and they have not supplied information sufficient to support 
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such a finding – they could not have maintained that position after their inventory search of the 

vehicle shortly thereafter. In sum, Defendants either violated Constance Hines’ due process 

rights by failing to afford her a hearing promptly after seizing her car for forfeiture purposes, or 

they violated her right against unreasonable seizures by seizing her car for evidentiary purposes 

without probable cause.

Defendants also contend that the City of Albany cannot be liable under a Monell claim. 

We disagree. Plaintiffs based their Monell claim on a theory that “municipal liability may be 

imposed for a single decision by municipal policymakers . . . whose acts or edicts may fairly be 

said to represent official policy.” Pembaur v. City of Cincinnati, 475 U.S. 469, 480 (1986).

“[W]here action is directed by those who establish governmental policy, the municipality is 

equally responsible whether that action is to be taken only once or to be taken repeatedly”; 

municipal liability, however, “attaches where—and only where—a deliberate choice to follow a 

course of action is made from among various alternatives by the official or officials responsible 

for establishing final policy with respect to the subject matter in question.” Id. at 483; see also 

Vives v. City of N.Y., 524 F.3d 346, 350 (2d Cir. 2008). In Pembaur, the Supreme Court looked 

to “standard office procedure” to define the nature of the relationship between the final 

decisionmaker—in that case, the county prosecutor—and the individuals directed to carry out the 

final decisionmaker’s order—the county sheriffs—in order to determine the extent to which the 

county prosecutor’s legal advice was “a deliberate choice to follow a course of action” that 

ultimately resulted in a constitutional violation. Pembaur, 475 U.S. at 484-85. 

As was the case in Pembaur, in this case the Albany Police Department followed a

“standard” procedure in seizing the vehicle and handling Constance Hines’ complaints. Under 

the Albany City Code, the Police Chief is expressly authorized to “make, adopt and enforce such 
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reasonable rules, orders and regulations” necessary for the Police Department’s “performance of 

all duties.” Albany City Code § 42-6(A). The Albany Police Department has a designated unit 

that handles the seizure and holding of property, including vehicles, but the head of this unit, 

defendant Michael Haggerty, “actually reports to” the Police Chief. The Police Chief testified 

that he retained some discretion to refuse to seize a vehicle when the Albany Police Department 

was working in concert with another law enforcement agency. The Police Chief further testified 

that it was the policy of the Department for the Police Chief to handle the complaints of citizens. 

Under these circumstances, the Police Chief was the final decisionmaker responsible for 

establishing the policy “with respect to the subject matter in question” in this case. 

Further, the “official responsible for establishing final policy with respect to the subject 

matter in question”—the Police Chief—made “a deliberate choice to follow a course of action” 

that resulted in the constitutional deprivation Constance Hines suffered. He testified that he was 

aware of the continued “safekeeping” of Constance Hines’ vehicle, and he further testified that, 

“I know I talked to her on a number of occasions,” which he specified was five times. In 

response to a letter from Constance Hines’ counsel, the Police Chief responded by letter that the 

“vehicle is in the possession of the Albany Police Department” and that the Department and 

another agency had “seized the vehicle” to be “held by these agencies until [a narcotics] 

investigation is complete.” The Police Chief thus knew of and addressed Hines’ complaints 

about the continued retention of her vehicle and, like the county prosecutor in Pembaur, the 

Police Chief made a “considered decision” that the Albany Police Department would continue to 

retain the vehicle. That this decision violated the Fourth Amendment is unaltered by the fact that 

the Police Department was cooperating with the Attorney General’s Organized Crime Task 
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Force in seizing the vehicle for the Task Force’s prosecution of individuals involved in a

narcotics conspiracy.

We have considered all of Defendants’ remaining arguments and find them to be without 

merit. The judgment of the district court is AFFIRMED. 

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk